Baisley v. Baisley

• Citation: 21 S.W. 29,113 Mo. 544
• Parties: BAISLEY v. BAISLEY.
• Decision Date: 31 January 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 29

113 Mo. 544

BAISLEY v. BAISLEY.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

VENUE IN CIVIL CASES — NONRESIDENTS — SERVICE OF PROCESS — APPEARANCE.

1. Rev. St. 1889, § 2009, provides that, when all the defendants are nonresidents of this state, suit may be brought in any county in this state. Held, that this provision is without restriction or limitation, and that all suits, whether in rem or in personam, may be so brought in any county in this state against such nonresident.

2. Where a nonresident voluntarily comes into the state to attend court, and, while so in attendance, he is served with process in a civil action, such service is sufficient to give the court jurisdiction.

3. Where a change of venue is taken after a decision on a plea to the jurisdiction on the ground that both parties were nonresidents, the question of jurisdiction cannot be raised in the court to which the cause is removed, unless the decision of the other court is reversed or set aside.

4. An application for a change of venue is a waiver of all question as to proper service, and admits jurisdiction.

5. A continuance by agreement of parties is tantamount to a general appearance, and waives the question of jurisdiction.

Error to circuit court, Carroll county; James M. Davis, Judge.

Action by Jeremiah C. Baisley against Samuel E. Baisley for libel. From a judgment for defendant, plaintiff brings error. Reversed.

The other facts fully appear in the following statement by SHERWOOD, J.:

Action for libel. Both parties are residents of Baker county, in the state of Oregon. The defendant had brought a suit by attachment against the plaintiff, who owned a farm in Chariton county. While the suit by attachment was pending in Chariton county, and while the suit by attachment was in progress of trial, and while both parties were in attendance thereon, the present action was brought by plaintiff, and service had on defendant in usual form, October 23, 1885. Defendant, appearing only for the purposes of the plea, pleaded to the jurisdiction of the court on the ground of the nonresidence of both parties to this action, as aforesaid. In January, 1887, the plea to the jurisdiction on the conceded facts mentioned was heard, and the finding thereon was adverse to the defendant, and judgment on said plea was entered accordingly, to which action of the court the defendant excepted, and filed his bill of exceptions. The libel in question was published in Chariton county, Mo., through the medium of a letter written by defendant while in Oregon, to one Colvin, a resident of Chariton county, where this suit was brought. After the adverse ruling and judgment on the defendant's plea to the jurisdiction, he filed his application for a change of venue, and by agreement the change was made to the circuit court of Carroll county. The record and papers in the cause having been transmitted to the Carroll circuit court, the cause was docketed for the March term, 1887, at which term the cause was continued, by "agreement of plaintiff and defendant, to the next term of said court." At the next term the defendant took leave to file his answer in vacation. Complying with this permission, he filed his answer, in which he renewed his plea to the jurisdiction of the court on grounds similar to those already stated, and he also pleaded to the merits of the cause. The plaintiff replied with a general denial, and also a plea of former adjudication on the plea in abatement. A jury being waived, the cause was heard on the facts aforesaid, only the plea to the jurisdiction being tried. This trial resulted in a judgment for the defendant, and plaintiff appeals.

Kinley & Kinley, for plaintiff in error. C. Hammond & Son, for defendant in error.

SHERWOOD, J., (after stating the facts.)

1. The fourth clause of section 2009, Rev. St. 1889, provides that, when all the defendants are nonresidents of this state, suit may be brought in any county in this state. It will be observed that this clause is without limitation or restriction. Suits, then, — that is, all suits, whether by proceedings in rem or in personam, — are allowed to be brought in any county in this state against a nonresident, and the mere fact of a party's nonresidence, without more, is one of the grounds for an attachment. Id. § 521. From an early day in this state it has been ruled that one nonresident may sue another by attachment in this state, (Posey v. Buckner, 3 Mo. 413; Graham v. Bradbury, 7 Mo. 281,) though the statute concerning attachments contains no mention of nonresidents as suitors in our courts. When the action is commenced by attachment the suit must contain a summons to the defendant. Rev. St. 1889, § 538. Whether the present plaintiff was personally served with process in the attachment suit does not appear; but, if he was, then such service would authorize a general judgment against him, and the like result would follow if he entered his appearance to the action. Id. § 561. So that, if the contention of the defendant is to prevail, it would be perfectly competent for him to recover a general judgment against the plaintiff in his attachment suit, but very improper and illegal for the plaintiff to recover a like judgment against him in the libel suit. In the recent case of Christian v. Williams, (Mo. Sup.) 20 S. W. Rep. 96, we held that, where a person was attending court in this state in the capacity of party in a county other than that of his residence, he might be sued in the county of the forum of his attendance; and that under the first clause of said section 2009, he was "found," within the meaning of that clause, if the sheriff served process on him, and that, in such circumstances, he could not successfully plead to the jurisdiction of the court where he was thus served. In thus construing that clause of the section we gave the word "found" its ordinary...